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| vol 13, num 3 | SEPTEMBER, 2017 |
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| Circuit Court Split: The One-Day-Late Rule and Dischargeability of Tax Debt |
| Section 727(b) of the Bankruptcy Code provides for the discharge of debts that arose prior to the petition date. Section 523(a)(1)(B), however, excepts from discharge a tax debt “with respect to which a return, or equivalent report or notice, if required — (i) was not filed or given; or (ii) was filed or given after the date on which such return … was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition.”[1] Case law interpreting the definition of a “return” for purposes of § 523(a) has resulted in the development of the “one-day-late rule” and conflicting
circuit court opinions addressing what constitutes a “return” for dischargeability purposes. |
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| Rocking the Boat on Bankruptcy Court Authority: The U.S. Supreme Court |
| The U.S. Supreme Court has, for four decades, been rocking the boat [that’s Justice Blackmun’s metaphor] on bankruptcy court authority. First, they almost killed the Code, coming within one vote of declaring the entire Bankruptcy Code unconstitutional. Then, they limit and mess with it some more. Now, finally, it seems they are focused on making bankruptcy court authority work, rather than trying to restrain it.
Notably, all of these Supreme Court cases have something to do with fraud-type claims.
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| Lenders, Be Careful (and Precise) About What You Ask For: In re Curran and Material False Statements by Omission Under § 523(a)(2)(B) |
| Section 523(a)(2)(B) provides that an individual debtor’s debt is not discharged to the extent the debt was obtained by use of a statement in writing that (1) is materially false, (2) is respecting the debtor’s financial condition, (3) is one on which the creditor reasonably relied and (4) was caused by the debtor to be made or published with intent to deceive. Recently, in Privitera v. Curran (In re Curran),[1] the First Circuit considered the limits of a materially false statement by omission. It affirmed the bankruptcy court’s dismissal of a § 523(a)(2)(B) count, where the plaintiff’s averment in support of a materially false
statement was that the debtor had not disclosed information that the creditor had not requested in the first place. |
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©2017 American Bankruptcy Institute . All rights reserved.
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